AZ League Connection

The League's Monthly Online Newsletter

Issue 209: September 2020

Legal Corner: 2020 U.S. Supreme Court Review

The U.S. Supreme Court completed their term in early July, taking several more days to finish their work this term due to the COVID-19 pandemic. The Court closed to visitors in March and postponed oral arguments until May when arguments were conducted remotely and for the first time, the live audio stream of the arguments was accessible to the public. This article includes a recap of cases decided by the Court this term that impact cities and towns in Arizona. The League is grateful for the work of Russell Facente, the League’s Summer Extern from Sandra Day O’Connor School of Law, who assisted in reading all the cases and writing this article.

Bostock v. Clayton County, 140 S. Ct. 1731 (June 15, 2020) (Consolidated with Altitude Express Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes, Inc. V. Equal Employment Opportunity Commission)

The consolidated cases involve an employer who allegedly fired a long-time employee for being homosexual or transgender. Specifically, Clayton County, Georgia fired Gerald Bostock after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda after he mentioned being gay and R.G. and G.R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired and later informed her employer that she planned to live and work full-time as a woman. The employees sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII doesn’t apply and dismissed Mr. Bostock’s suit. The Second and Sixth Circuits allowed the claims of Mr. Zarda and Ms. Stephens to proceed.

In a 6-3 decision of the Court, Justice Gorsuch explained that sexual orientation and gender are protected in the employment context because discrimination based on orientation or gender inextricably requires a judgment on the employee’s sex. The text of the statute, namely the word “sex,” referred not to orientation or gender, but purely the ordinary male-or-female designation. Justice Gorsuch explained that the concepts of gender and of orientation only exist as a description of a person’s conduct in relation to their sex (in the case of transgender, sex assigned at birth). Thus, the Court found any discrimination of gender or sexual orientation includes as one portion discrimination because of sex. The Court affirmed the Second and Sixth Circuits and reversed the Eleventh Circuit judgment, remanding the case for further proceedings.

Kansas v. Glover, 140 S. Ct. 1183 (April 6, 2020)

While on patrol, Deputy Sheriff Mark Mehrer saw a 1995 pickup truck and ran the license plate. The truck came back registered to Charles Glover Jr. who had a revoked license. The Deputy stopped the truck and found Mr. Glover behind the wheel and charged him accordingly. Mr. Glover filed and was granted a motion to suppress on the grounds that no reasonable suspicion existed for the initial stop. The Court of Appeals reversed, and Mr. Glover filed a Petition for Review with the Kansas Supreme Court, which reversed (reinstating the motion to suppress).

On April 6, 2020, writing for an 8-1 Court, Justice Thomas wrote there is reasonable suspicion because officers must make practical judgments based on the facts – here, the officer observed the vehicle and discovered the registered owner of the truck had a revoked license and “drew the commonsense inference that Mr. Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.” The Court noted that if the officer determines the registered owner to be in his mid-sixties yet observes that the driver is in her mid-twenties, this will not raise a suspicion that the individual is engaged in wrongdoing. The Court held that Deputy Mehrer drew an entirely reasonable inference based on the totality of the circumstances. The Court reversed the Kansas Supreme Court and remanded the case.

County of Maui, Hawaii v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (April 23, 2020)

The Clean Water Act forbids “any addition” of any pollutant from “any point source” to navigable waters” without a permit from the Environmental Protection Agency (EPA). The Count of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and pumps around 4 million gallons of treated water into the ground through four wells, and then it travels about a half mile to the Pacific Ocean. The Hawaii Wildlife Fund (Fund) alleged that the County was discharging a pollutant to navigable waters without the EPA permit. The District Court agreed with the Fund and granted summary judgment. The Ninth Circuit affirmed.

The County argued that interpreting “from” to include any amount of intermediary would subject all homeowners with a septic system to obtain a permit. All water (and therefore suspended pollutants) will eventually reach a nationally owned river or ocean front after all. But the other extreme, argued by Hawaii Wildlife Fund, that if “from” meant direct-to-water then a polluter could avoid permits simply by cutting their pipes two feet short and let the pollutants spill onto the shoreline or river bank, was equally unworkable.

The Court, in a 6-3 decision, found that when there is a functional equivalent of a direct discharge (pollutants from treated wastewater) from a point source (wells) to navigable waters, (Pacific Ocean) a permit is required under the Clean Water Act. According to the Court, the functional equivalent of a direct discharge test “best captures, in broad terms, those circumstances in which Congress intended to require a federal permit.” The Court vacated the Ninth Circuit’s judgment and remanded the case.

Dept. of Homeland Security v. Regents of the Univ. of California, 140 S. Ct. 1891 (June 18, 2020)

In 2012 the Department of Homeland Security (DHS) issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the U.S. as children to apply for a two-year forbearance of removal. In 2014 DHS expanded the DACA eligibility and created the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would make 4.3 million parents of U.S. citizens or lawful permanent residents eligible for the same forbearance from removal, work eligibility and other DACA benefits. Texas, joined by 25 other States, were granted a nationwide preliminary injunction barring DACA expansion and DAPA. The Fifth Circuit upheld the injunction.

In June 2017, DHS rescinded the DAPA Memorandum. Several groups of plaintiffs challenged DHS’ decision to rescind DACA, claiming that it was arbitrary and capricious in violation of the Administrative Procedure Act (APA) and infringed the equal protection guarantee of the Fifth Amendment's Due Process Clause. After numerous rulings in various courts, the District Courts agreed with the Plaintiffs and DHS appealed to the Second, Ninth and D.C. Circuits. Following the Ninth Circuit affirming the District Court ruling and the Supreme Court granted review.

On June 18th, in a 5-4 decision, Chief Justice Roberts concluded that DHS’s decision to end DACA was “arbitrary and capricious,” a violation of the Administrative Procedure Act because Acting DHS Secretary Elaine Duke rescinded DACA without offering a reason for terminating forbearance, failed to consider whether DACA recipients and others legitimately relied on the program. The Court stated that even if DACA “conferred no substantive rights” and provided benefits in two-year increments, “neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests…”

The Court stated that DHS’ failure to consider the issues “raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.” The Court remanded all three cases for further proceedings consistent with this opinion.

For more information on these decisions and other cases decided this term, please visit the U.S. Supreme Court website or SCOTUSblog.

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